LOUIS G. OUELLETTE, trustee vs. BUILDING INSPECTOR OF QUINCY & another.

TAURO, C.J. The petitioner as trustee of the Josden Realty Trust seeks a writ of mandamus requiring the

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respondent building inspector to issue a building permit for the construction of a fifty-three unit apartment building on certain property owned by the trust in the city of Quincy. The owner of an abutting property intervened in the Superior Court and demurred to the amended petition. The case is before us on the intervener's claim of appeal under G. L. c. 213, Section 1D, as amended through St. 1957, c. 155, from an order overruling his demurrer and from an order for judgment directing that a writ of mandamus be issued to the respondent building inspector. [Note 1]

Mandamus proceedings are reviewable according to the principles of review in equity. Chartrand v. Registrar of Motor Vehicles, 347 Mass. 470, 473. Iverson v. Building Inspector of Dedham, 354 Mass. 688, 689. The trial judge made no findings. We have before us the pleadings, various exhibits, and a condensed transcript of the testimony given in the Superior Court. Under G. L. c. 213, Section 1D, all questions of fact, law, and discretion which were open before the trial judge are open to us on appeal. Mitchell v. Selectmen of So. Hadley, 346 Mass. 158, 159. Cullen v. Building Inspector of No. Attleborough, 353 Mass. 671, 678.

1. In considering the intervener's appeal from the order overruling his demurrer, we are limited to the facts set forth in the amended petition and in the exhibits appended thereto. [Note 2] See DeLoach v. Tracy,

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352 Mass. 135, 136. "For the purposes of this discussion the facts well pleaded . . . must be assumed to be true." Butler v. Directors of the Port of Boston, 222 Mass. 5, 7.

The pertinent facts alleged are as follows. On September 25, 1967, the petitioner filed an application for a building permit, together with plans and specifications, for the construction of a fifty-three unit apartment building on his land. The proposed plans and specifications complied in every respect with Quincy's building code, and the proposed use of the land was lawful under the city's zoning ordinance. While the petitioner's application was pending, however, the city council on January 22, 1968, adopted a zoning ordinance amendment which rezoned the district including the petitioner's land and made apartment buildings a prohibited use. Subsequently, the respondent building inspector denied the petitioner's application on the basis of the amended zoning ordinance. The petitioner duly filed an appeal pursuant to G. L. c. 40A, Section 13, with the board of appeals which stated in a decision dated May 22, 1968, that "it . . . [had] no power to decide the validity or invalidity of . . . [a] [z]oning [o]rdinance or amendments thereto."

More than two and a half years after the board's action, this court on December 7, 1970, affirmed a Land Court decision which invalidated the 1968 zoning amendment for failure to comply with the statutory procedures for adoption (G. L. c. 40A, Section 7). [Note 3] See Trumper

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v. Quincy, 358 Mass. 311. Immediately thereafter, on December 8, 1970, the petitioner filed a second application which was substantially the same as his first application. The building inspector responded in a letter dated December 10, 1970, as follows: "Because of . . . [the enclosed] Resolve [of the city council], I can not issue . . . you . . . [the building] permit [which you have requested]." The enclosed resolve provided: "[T]he City Council of . . . Quincy instruct[s] the Building Inspector . . . not to issue a building permit to Josden Realty Trust--Ouellette, Trustee. . . until the . . . Council has acted on the proposed new [z]oning [o]rdinance." Notice of the proposed ordinance amendment referred to in the resolve was published in February, 1970, but the city council had not adopted the measure by the time the amended petition for a writ of mandamus was filed in January, 1971. The measure, if validly adopted, would reinstate the zoning change invalidated by the Trumper decision and would make apartment buildings a prohibited use in the district in which the petitioner's land is situated.

The intervener argues that his demurrer to the amended petition should have been sustained on the ground [Note 4] that mandamus does not lie because the petitioner has an adequate administrative remedy in G. L. c. 40A, Section 13, as amended through St. 1963, c. 207, Section 1. The petitioner maintains, to the contrary, that the statutory appeal is unavailable. In the circumstances of this case, we agree with the petitioner that mandamus is the proper remedy.

The pertinent statutory language provides: "An appeal to the board of appeals . . . may be taken by any person aggrieved by reason of his inability to obtain a permit from any administrative official under the provisions

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of this chapter." G. L. c. 40A, Section 13, as amended. [Note 5]

While "[c]ourts must be careful not to invade the province of an administrative board" (St. Luke's Hosp. v. Labor Relations Commn. 320 Mass. 467, 470; Electronics Corp. of America v. City Council of Cambridge, 348 Mass. 563, 568), we are of opinion that, in the instant case, the statute confers no jurisdiction upon the board of appeals. As we construe G. L. c. 40A, Section 13, as amended, appeals to the board by aggrieved applicants for building permits are limited to instances where the building inspector has refused a permit "under the provisions of . . . chapter [40A]" [Note 6] (Rice v. Board of Appeals of Dennis, 342 Mass. 499, 501). See P & D Serv. Co. Inc. v. Zoning Bd. of Appeals of Dedham, 359 Mass. 96, 104. Chapter 40A, Section 12, provides only one ground for refusal: "The inspector of buildings . . . shall withhold a permit . . . if the building . . . as constructed . . . would be in violation of any zoning ordinance or by-law or amendment thereof." Cf. G. L. c. 143, Section 3, third paragraph. In the instant case, however, the respondent building inspector had refused the petitioner a permit not on the basis of noncompliance with zoning requirements but rather on account of improper interference with his duties by other municipal officials.

The intervener has not brought to our attention any statute or ordinance which enlarges the jurisdiction of the board of appeals to encompass matters in addition to those conferred by G. L. c. 40A, Section 13. See Hardy, Municipal Law & Practice (2d ed.) Section 168 at 188-189. Compare C. & H. Co. v. Building Commr. of Medford, 303 Mass. 499, 500-501; Rice v. Board of Appeals of

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Dennis, supra, at 500-501. In the absence of such legislation, the futility of an appeal to the board is apparent. It would be unreasonable, therefore, to compel the petitioner to pursue an appeal to the board as a prerequisite to judicial relief. In Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 84, in analogous circumstances, we said: "[W]here an administrative agency cannot afford relief resort to the agency is not required." See St. Luke's Hosp. v. Labor Relations Commn. 320 Mass. 467, 470; Metropolitan Dist. Police Relief Assn. Inc. v. Commissioner of Ins. 347 Mass. 686, 689; Bearce v. Zoning Bd. of Appeals of Brockton, 351 Mass. 316, 319-320. [Note 7] Cf. Bowes v. Inspector of Bldgs. of Brockton, 347 Mass. 295, 296, and cases cited.

We hold that, where, as here, a building inspector acts outside the scope of his authority conferred by G. L. c. 40A, Section 12, the appropriate means of redress in the absence of an adequate administrative remedy is through a petition for a writ of mandamus. [Note 8] Mandamus, of course, will not be granted if the reason given for refusing

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a building permit comes within G. L. c. 40A, Section 12 (see Church v. Building Inspector of Natick, 343 Mass. 266, 268), or if there is an adequate administrative remedy provided in law (see Iverson v. Building Inspector of Dedham, 354 Mass. 688, 690-691).

2. We come to the intervener's appeal from the order for judgment directing the issuance of a writ of mandamus.

The intervener concedes that the resolve purporting to instruct the respondent building inspector has "no validity." The law is clear on this matter. See Fellsway Realty Corp. v. Building Commr. of Medford, 332 Mass. 471, 472-473. [Note 9] The intervener contends, however, that, although the city council acted improperly in giving directions to the building inspector, the action of the building inspector in refusing to issue a permit should be affirmed on the basis of our decision in Doliner v. Planning Bd. of Millis, 343 Mass. 1, 5-8. We disagree. The rationale of the Doliner case has no application here.

In the Doliner case, this court held that, under statutes then in effect, a planning board could properly disapprove a subdivision plan as inconsistent with a newly adopted zoning amendment even before it was approved by the Attorney General under G. L. c. 40, Section 32. [Note 10] In reaching this result, we gave dispositive weight to G. L. c. 40A, Section 11, which provides in pertinent part: "The issuance of a [building] permit or the beginning of work

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[thereunder] . . ., after . . . notice [of hearing on a proposed zoning amendment] has been given . . . , shall not justify the violation of a zoning . . . amendment subsequently adopted as the outcome of such hearing and in substantial accord with such notice. . .; provided, [that] the subsequent steps required for . . . adoption . . . are taken in their usual sequence without unnecessary or unreasonable delay." We said (at page 7 of the Doliner case) : "[H]aving in mind c. 40A, Section 11, the Legislature can hardly have intended that a planning board must disregard the terms of a zoning by-law, already adopted by the town even if not yet approved by the Attorney General, when called upon to consider a subdivision plan violating that by-law. . . . If the planning board were to approve such a plan, its action would be an empty gesture . . . ."

There is a distinction between a proposed zoning amendment, such as is involved in the instant case, and an amendment which has been adopted but has not yet been approved and published, such as was involved in the Doliner case. While a proposed zoning amendment may undergo substantial changes or may be abandoned entirely, once the town has adopted an amendment, it will generally receive the Attorney General's approval (either actual or constructive) and, after appropriate publication, will take effect. [Note 11] See G. L. c. 40, Section 32. Because of this fundamental difference, while a building inspector may refuse to issue a permit because of a newly adopted zoning amendment, we are unwilling to say that he may refuse to issue a permit merely because of a proposed zoning amendment. [Note 12] In any event, under G. L. c. 40A, Section 12, a building inspector is empowered to "withhold a

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permit" only "if the [proposed] building . . . as constructed . . . would be in violation of any zoning ordinance or by-law or amendment therof" (emphasis supplied). While the emphasized language is sufficiently broad to encompass an amendment which has been adopted but is not yet effective, we think that a fair construction must exclude a mere proposed zoning amendment.

Furthermore, there is nothing in the record to show that the proposed zoning amendment was ever adopted. Even if, however, it was adopted in March, 1971, as the intervener asserts in his brief, and even if notice of the initial public hearing thereon was given in February, 1970, it cannot be said that "the subsequent steps required for the adoption of . . . [the] amendment . . . [were] taken . . . without unnecessary or unreasonable delay" (see G. L. c. 40A, Section 11). Adoption, therefore, would not bar the issuance of the building permit.

For these reasons, we conclude that the petitioner is entitled to a building permit and that the judge properly entered the order for judgment in his behalf.

Order overruling demurrer affirmed.

Order for judgment affirmed.